Saskatchewan Wheat Pool v. Canada ( Attorney General )
T-1962-93
Rothstein J.
10/9/93
23 pp.
Action to determine whether Canadian Wheat Board Regulations, ss. 15, 16.1, permitting trading in barley interprovincially or to or from U.S.A. without licence, ultra vires and of no force and effect-Issue whether Governor in Council may, by regulation, in effect, deregulate interprovincial marketing of barley and export and import of barley to or from United States-Canadian Wheat Board Act, s. 47 (originally s. 29A) giving Board exclusive control over interprovincial and international trading of oats and barley by permitting Governor in Council by regulation to extend application of Act, Parts III and/or IV to oats and/or barley-Parts III, IV establishing Board's exclusive control over interprovincial and export marketing and import of wheat-S. 47(2) providing where Governor in Council extending application of any Part of Act, provisions of that Part deemed to be reenacted-No other changes to Parts III, IV authorized-Governor in Council not vested with authority to amend Parts III and IV-By 1949 Governor in Council acting on annual basis by regulation to extend Parts III, IV to oats, barley-Inference Governor in Council could act by regulation to extend Board's exclusive control over marketing of oats, barley, but if chose not to do so, Board not having control over oats, barley for that year and until Governor in Council again extending application of Parts III, IV-Extension of Parts III, IV to oats, barley regulatory action, not analogous to promulgation of statute-Regulatory power not spent once acted upon by Governor in Council-Interpretation Act, s. 31(4) providing power to make regulations including power to repeal, amend or vary regulations-Governor in Council therefore able to repeal extension of Parts III, IV-Regulations, s. 9 extending Parts III, IV to barley-Canadian Wheat Board Act, s. 45 giving Board exclusive control over interprovincial and international marketing of wheat and by extension of Part IV, of barley, except as permitted under regulations-S. 46 conferring on Governor in Council regulation-making authority in respect of interprovincial and export trade in wheat, barley-Primarily dealing with provisions for granting licences to persons other than Board-No wheat or barley may be marketed interprovincially or internationally except by Board or person licensed by Board-Impugned regulations permitting trading in barley interprovincially or to or from U.S.A. without licence-Action allowed-Canadian Wheat Board Regulations, ss. 15, 16.1, declared ultra vires and of no force and effect-"Except as permitted under the regulations" in Act, s. 45 not conferring regulation-making authority on Governor in Council-Only creating potential or possibility for persons other than Board to trade in barley-S. 46 not conferring on Governor in Council power to authorize export or import of barley to or from U.S.A. without licence and by implication interprovincial trading of barley without licence-Governor in Council purporting to remove from regulatory regime of Act interprovincial trade in barley and export and import of barley to and from U.S.A.-Cannot dispense with requirement for licence altogether when statute conferring regulation-making authority expressly contemplating regulations providing for granting of licences-S. 47 regulation-making power merely conferring power to extend application of Parts III, IV to barley-Parts III, IV cannot be changed by regulation because when extended to barley deemed reenacted in Part-No scope for Governor in Council, in regulations authorized to make under s. 47, to allow for interprovincial trading in barley or export or import of barley to or from U.S.A. without licence-S. 61 permitting Governor in Council to make regulations for any purpose for which regulations may be made under Act-S. 61 not regulation-making authority on own-Must be read with other provisions allowing for making of regulations-Although s. 47 and Interpretation Act, s. 31(4) conferring on Governor in Council power to revoke extension of Parts III, IV cannot deregulate partially-When Parts III, IV extended to barley deemed reenacted-Partial deregulations implying amendment of Parts III, IV-Beyond authority of Governor in Council to amend Parts III, IV-Parliament permitting Governor in Council to decide only whether or not interprovincial and export trade in barley should be subject to same regulatory regime as wheat-Whether proceedings should be by way of application for judicial review under Federal Court Act, s. 18.1 or by way of action and statement of claim-Definition of "federal board, commission or other tribunal" including any body exercising powers conferred by Act of Parliament-When acting pursuant to statute Governor in Council federal board-Originating notice under s. 18.1 only correct way to challenge decision or order of Governor in Council made pursuant to statutory authority-Federal Court Act, s. 18 providing proceedings against Attorney General of Canada for declaratory relief in respect of decision or order of federal board, commission or other tribunal to be brought by application for judicial review under s. 18.1-No distinction in definition or in s. 18 excluding from s. 18 Governor in Council or any other federal board when acting in legislative capacity-No explanation why Parliament would have intended legislative acts of federal boards, commissions or other tribunals to be challenged by action while judicial, quasi-judicial or administrative decisions or orders should be challenged by way of judicial review-As 1992 amendments to Federal Court Act intended to clarify, simplify proceedings in Federal Court, Parliament not intending subtle distinction between manner of challenging legislative actions and actions of judicial, quasi-judicial or administrative nature-Canadian Wheat Board Regulations, C.R.C., c. 397, ss. 9 (as am. by SOR/89-282, s. 1), 14 (as am. by SOR/89-281, s. 4; 86-160, s. 1), 15 (as am. by SOR/89-281, s. 5; 93-360, s. 2)-Interpretation Act, R.S.C., 1985, c. I-21, s. 31(4)-Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 45, 46 (as am. by S.C. 1988, c. 65, s. 60), 47, 61-Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by S.C. 1990, c. 8, s. 1), 17(3)(b), 18 (as am. idem, s. 4), 18.1 (as am. idem, s. 5)-The Canadian Wheat Board Act, 1935, S.C. 1935, c. 53, s. 29A (as enacted by S.C. 1948, c. 4, s. 5).